23 U.S.C. § 202 — Tribal transportation program

**(a) Use of Funds.—** (1) **In general.—** — Funds made available under the tribal transportation program shall be used by the Secretary of Transportation and the Secretary of the Interior to pay the costs of— (A) (i) transportation planning, research, maintenance, engineering, rehabilitation, restoration, construction, and reconstruction of tribal transportation facilities; (ii) adjacent vehicular parking areas; (iii) interpretive signage; (iv) acquisition of necessary scenic easements and scenic or historic sites; (v) provisions for pedestrians and bicycles; (vi) environmental mitigation in or adjacent to tribal land— (I) to improve public safety and reduce vehicle-caused wildlife mortality while maintaining habitat connectivity; and (II) to mitigate the damage to wildlife, aquatic organism passage, habitat, and ecosystem connectivity, including the costs of constructing, maintaining, replacing, or removing culverts and bridges, as appropriate; (vii) construction and reconstruction of roadside rest areas, including sanitary and water facilities; and (viii) other appropriate public road facilities as determined by the Secretary; (B) operation and maintenance of transit programs and facilities that are located on, or provide access to, tribal land, or are administered by a tribal government; and (C) any transportation project eligible for assistance under this title that is located within, or that provides access to, tribal land, or is associated with a tribal government. (2) **Contract.—** — In connection with an activity described in paragraph (1), the Secretary and the Secretary of the Interior may enter into a contract or other appropriate agreement with respect to the activity with— (A) a State (including a political subdivision of a State); or (B) an Indian tribe. (3) **Indian labor.—** — Indian labor may be employed, in accordance with such rules and regulations as may be promulgated by the Secretary of the Interior, to carry out any construction or other activity described in paragraph (1). (4) **Federal employment.—** — No maximum limitation on Federal employment shall be applicable to the construction or improvement of tribal transportation facilities. (5) **Funds for construction and improvement.—** — All funds made available for the construction and improvement of tribal transportation facilities shall be administered in conformity with regulations and agreements jointly approved by the Secretary and the Secretary of the Interior. (6) **Administrative expenses.—** — Of the funds authorized to be appropriated for the tribal transportation program, not more than 5 percent may be used by the Secretary or the Secretary of the Interior for program management and oversight and project-related administrative expenses. (7) **Tribal technical assistance centers.—** — The Secretary of the Interior may reserve amounts from administrative funds of the Bureau of Indian Affairs that are associated with the tribal transportation program to fund tribal technical assistance centers under section 504(b). (8) **Maintenance.—** (A) *Use of funds.—* — Notwithstanding any other provision of this title, of the amount of funds allocated to an Indian tribe from the tribal transportation program, for the purpose of maintenance (excluding road sealing, which shall not be subject to any limitation), the Secretary shall not use an amount more than the greater of— (i) an amount equal to 25 percent; or (ii) $500,000. (B) *Responsibility of bureau of indian affairs and secretary of the interior.—* (i) *Bureau of indian affairs.—* — The Bureau of Indian Affairs shall retain primary responsibility, including annual funding request responsibility, for Bureau of Indian Affairs road maintenance programs on Indian reservations. (ii) *Secretary of the interior.—* — The Secretary of the Interior shall ensure that funding made available under this subsection for maintenance of tribal transportation facilities for each fiscal year is supplementary to, and not in lieu of, any obligation of funds by the Bureau of Indian Affairs for road maintenance programs on Indian reservations. (C) *Tribal-state road maintenance agreements.—* (i) *In general.—* — An Indian tribe and a State may enter into a road maintenance agreement under which an Indian tribe shall assume the responsibility of the State for— (I) tribal transportation facilities; and (II) roads providing access to tribal transportation facilities. (ii) *Requirements.—* — Agreements entered into under clause (i) shall— (I) be negotiated between the State and the Indian tribe; and (II) not require the approval of the Secretary. (9) **Cooperation.—** (A) *In general.—* — The cooperation of States, counties, or other local subdivisions may be accepted in construction and improvement. (B) *Funds received.—* — Any funds received from a State, county, or local subdivision shall be credited to appropriations available for the tribal transportation program. (10) **Competitive bidding.—** (A) *Construction.—* (i) *In general.—* — Subject to clause (ii) and subparagraph (B), construction of each project shall be performed by contract awarded by competitive bidding. (ii) *Exception.—* — Clause (i) shall not apply if the Secretary or the Secretary of the Interior affirmatively finds that, under the circumstances relating to the project, a different method is in the public interest. (B) *Applicability.—* — Notwithstanding subparagraph (A), section 23 of the Act of June 25, 1910 ([25 U.S.C. 47](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section47&num=0&edition=prelim)) and section 7(b) of the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5307(b)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5307/b&num=0&edition=prelim)) shall apply to all funds administered by the Secretary of the Interior that are appropriated for the construction and improvement of tribal transportation facilities. **(b) Funds Distribution.—** (1) **National tribal transportation facility inventory.—** (A) *In general.—* — The Secretary of the Interior, in cooperation with the Secretary, shall maintain a comprehensive national inventory of tribal transportation facilities that are eligible for assistance under the tribal transportation program. (B) *Transportation facilities included in the inventory.—* — For purposes of identifying the tribal transportation system and determining the relative transportation needs among Indian tribes, the Secretary shall include, at a minimum, transportation facilities that are eligible for assistance under the tribal transportation program that an Indian tribe has requested, including facilities that— (i) were included in the Bureau of Indian Affairs system inventory prior to October 1, 2004; (ii) are owned by an Indian tribal government; (iii) are owned by the Bureau of Indian Affairs; (iv) were constructed or reconstructed with funds from the Highway Trust Fund under the Indian reservation roads program since 1983; (v) are public roads or bridges within the exterior boundary of Indian reservations, Alaska Native villages, and other recognized Indian communities (including communities in former Indian reservations in the State of Oklahoma) in which the majority of residents are American Indians or Alaska Natives; (vi) are public roads within or providing access to an Indian reservation or Indian trust land or restricted Indian land that is not subject to fee title alienation without the approval of the Federal Government, or Indian or Alaska Native villages, groups, or communities in which Indians and Alaska Natives reside, whom the Secretary of the Interior has determined are eligible for services generally available to Indians under Federal laws specifically applicable to Indians; or (vii) are primary access routes proposed by tribal governments, including roads between villages, roads to landfills, roads to drinking water sources, roads to natural resources identified for economic development, and roads that provide access to intermodal terminals, such as airports, harbors, or boat landings. (C) *Limitation on primary access routes.—* — For purposes of this paragraph, a proposed primary access route is the shortest practicable route connecting 2 points of the proposed route. (D) *Additional facilities.—* — Nothing in this paragraph precludes the Secretary from including additional transportation facilities that are eligible for funding under the tribal transportation program in the inventory used for the national funding allocation if such additional facilities are included in the inventory in a uniform and consistent manner nationally. (E) *Bridges.—* — All bridges in the inventory shall be recorded in the national bridge inventory administered by the Secretary under section 144. (2) **Regulations.—** — Notwithstanding sections 563(a) and 565(a) of title 5, the Secretary of the Interior shall maintain any regulations governing the tribal transportation program. (3) **Basis for funding formula.—** (A) *Basis.—* (i) *In general.—* — After making the set asides authorized under subparagraph (C) and subsections (a)(6), (c), (d), and (e) on October 1 of each fiscal year, the Secretary shall distribute the remainder authorized to be appropriated for the tribal transportation program under this section among Indian tribes as follows: (I) For fiscal year 2013— (aa) for each Indian tribe, 80 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and (bb) the remainder using tribal shares as described in subparagraphs (B) and (C). (II) For fiscal year 2014— (aa) for each Indian tribe, 60 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and (bb) the remainder using tribal shares as described in subparagraphs (B) and (C). (III) For fiscal year 2015— (aa) for each Indian tribe, 40 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and (bb) the remainder using tribal shares as described in subparagraphs (B) and (C). (IV) For fiscal year 2016 and thereafter— (aa) for each Indian tribe, 20 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and (bb) the remainder using tribal shares as described in subparagraphs (B) and (C). (ii) *Tribal high priority projects.—* — The High Priority Projects program as included in the Tribal Transportation Allocation Methodology of part 170 of title 25, Code of Federal Regulations (as in effect on the date of enactment of the MAP–21), shall not continue in effect. (B) *Tribal shares.—* — Tribal shares under this program shall be determined using the national tribal transportation facility inventory as calculated for fiscal year 2012, and the most recent data on American Indian and Alaska Native population within each Indian tribe’s American Indian/Alaska Native Reservation or Statistical Area, as computed under the Native American Housing Assistance and Self-Determination Act of 1996 ([25 U.S.C. 4101](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section4101&num=0&edition=prelim) et seq.), in the following manner: (i) 27 percent in the ratio that the total eligible road mileage in each tribe bears to the total eligible road mileage of all American Indians and Alaskan Natives. For the purposes of this calculation, eligible road mileage shall be computed based on the inventory described in paragraph (1), using only facilities included in the inventory described in clause (i), (ii), or (iii) of paragraph (1)(B). (ii) 39 percent in the ratio that the total population in each tribe bears to the total population of all American Indians and Alaskan Natives. (iii) 34 percent shall be divided equally among each Bureau of Indian Affairs region. Within each region, such share of funds shall be distributed to each Indian tribe in the ratio that the average total relative need distribution factors and population adjustment factors from fiscal years 2005 through 2011 for a tribe bears to the average total of relative need distribution factors and population adjustment factors for fiscal years 2005 through 2011 in that region. (C) *Tribal supplemental funding.—* (i) *Tribal supplemental funding amount.—* — Of funds made available for each fiscal year for the tribal transportation program, the Secretary shall set aside the following amount for a tribal supplemental program: (I) If the amount made available for the tribal transportation program is less than or equal to $275,000,000, 30 percent of such amount. (II) If the amount made available for the tribal transportation program exceeds $275,000,000— (aa) $82,500,000; plus (bb) 12.5 percent of the amount made available for the tribal transportation program in excess of $275,000,000. (ii) *Tribal supplemental allocation.—* — The Secretary shall distribute tribal supplemental funds as follows: (I) *Distribution among regions.—* — Of the amounts set aside under clause (i), the Secretary shall distribute to each region of the Bureau of Indian Affairs a share of tribal supplemental funds in proportion to the regional total of tribal shares based on the cumulative tribal shares of all Indian tribes within such region under subparagraph (B). (II) *Distribution within a region.—* — Of the amount that a region receives under subclause (I), the Secretary shall distribute tribal supplemental funding among Indian tribes within such region as follows: (aa) *Tribal supplemental amounts.—* — The Secretary shall determine— (AA) which such Indian tribes would be entitled under subparagraph (A) to receive in a fiscal year less funding than they would receive in fiscal year 2011 pursuant to the relative need distribution factor and population adjustment factor, as described in subpart C of part 170 of title 25, Code of Federal Regulations (as in effect on the date of enactment of the MAP–21); and (BB) the combined amount that such Indian tribes would be entitled to receive in fiscal year 2011 pursuant to such relative need distribution factor and population adjustment factor in excess of the amount that they would be entitled to receive in the fiscal year under subparagraph (B). (bb) *Combined amount.—* — Subject to subclause (III), the Secretary shall distribute to each Indian tribe that meets the criteria described in item (aa)(AA) a share of funding under this subparagraph in proportion to the share of the combined amount determined under item (aa)(BB) attributable to such Indian tribe. (III) *Ceiling.—* — An Indian tribe may not receive under subclause (II) and based on its tribal share under subparagraph (A) a combined amount that exceeds the amount that such Indian tribe would be entitled to receive in fiscal year 2011 pursuant to the relative need distribution factor and population adjustment factor, as described in subpart C of part 170 of title 25, Code of Federal Regulations (as in effect on the date of enactment of the MAP–21). (IV) *Other amounts.—* — If the amount made available for a region under subclause (I) exceeds the amount distributed among Indian tribes within that region under subclause (II), the Secretary shall distribute the remainder of such region’s funding under such subclause among all Indian tribes in that region in proportion to the combined amount that each such Indian tribe received under subparagraph (A) and subclauses (I), (II), and (III). (4) **Transferred funds.—** (A) *In general.—* — Not later than 30 days after the date on which funds are made available to the Secretary of the Interior under this paragraph, the funds shall be distributed to, and made available for immediate use by, eligible Indian tribes, in accordance with the formula for distribution of funds under the tribal transportation program. (B) *Use of funds.—* — Notwithstanding any other provision of this section, funds made available to Indian tribes for tribal transportation facilities shall be expended on projects identified in a transportation improvement program approved by the Secretary. (5) **Health and safety assurances.—** — Notwithstanding any other provision of law, an Indian tribal government may approve plans, specifications, and estimates and commence road and bridge construction with funds made available from the tribal transportation program through a contract or agreement under the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.), if the Indian tribal government— (A) provides assurances in the contract or agreement that the construction will meet or exceed applicable health and safety standards; (B) obtains the advance review of the plans and specifications from a State-licensed civil engineer that has certified that the plans and specifications meet or exceed the applicable health and safety standards; and (C) provides a copy of the certification under subparagraph (A) to the Deputy Assistant Secretary for Tribal Government Affairs, Department of Transportation, or the Assistant Secretary for Indian Affairs, Department of the Interior, as appropriate. (6) **Contracts and agreements with indian tribes.—** (A) *In general.—* — Notwithstanding any other provision of law or any interagency agreement, program guideline, manual, or policy directive, all funds made available through the Secretary of the Interior under this chapter and section 125(e) for tribal transportation facilities to pay for the costs of programs, services, functions, and activities, or portions of programs, services, functions, or activities, that are specifically or functionally related to the cost of planning, research, engineering, and construction of any tribal transportation facility shall be made available, upon request of the Indian tribal government, to the Indian tribal government for contracts and agreements for such planning, research, engineering, and construction in accordance with 11 So in original. Probably should be followed by “the”. Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.). (B) *Exclusion of agency participation.—* — All funds, including contract support costs, for programs, functions, services, or activities, or portions of programs, services, functions, or activities, including supportive administrative functions that are otherwise contractible to which subparagraph (A) applies, shall be paid in accordance with subparagraph (A), without regard to the organizational level at which the Department of the Interior has previously carried out such programs, functions, services, or activities. (7) **Contracts and agreements with indian tribes.—** (A) *In general.—* — Notwithstanding any other provision of law or any interagency agreement, program guideline, manual, or policy directive, all funds made available to an Indian tribal government under this chapter for a tribal transportation facility program or project shall be made available, on the request of the Indian tribal government, to the Indian tribal government for use in carrying out, in accordance with the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.), contracts and agreements for the planning, research, design, engineering, construction, and maintenance relating to the program or project. (B) *Exclusion of agency participation.—* — In accordance with subparagraph (A), all funds, including contract support costs, for a program or project to which subparagraph (A) applies shall be paid to the Indian tribal government without regard to the organizational level at which the Department of the Interior has previously carried out, or the Department of Transportation has previously carried out under the tribal transportation program, the programs, functions, services, or activities involved. (C) *Consortia.—* — Two or more Indian tribes that are otherwise eligible to participate in a program or project to which this chapter applies may form a consortium to be considered as a single Indian tribe for the purpose of participating in the project under this section. (D) *Secretary as signatory.—* — Notwithstanding any other provision of law, the Secretary is authorized to enter into a funding agreement with an Indian tribal government to carry out a tribal transportation facility program or project under subparagraph (A) that is located on an Indian reservation or provides access to the reservation or a community of the Indian tribe. (E) *Funding.—* — The amount an Indian tribal government receives for a program or project under subparagraph (A) shall equal the sum of the funding that the Indian tribal government would otherwise receive for the program or project in accordance with the funding formula established under this subsection and such additional amounts as the Secretary determines equal the amounts that would have been withheld for the costs of the Bureau of Indian Affairs for administration of the program or project. (F) *Eligibility.—* (i) *In general.—* — Subject to clause (ii) and the approval of the Secretary, funds may be made available under subparagraph (A) to an Indian tribal government for a program or project in a fiscal year only if the Indian tribal government requesting such funds demonstrates to the satisfaction of the Secretary financial stability and financial management capability during the 3 fiscal years immediately preceding the fiscal year for which the request is being made. (ii) *Considerations.—* — An Indian tribal government that had no uncorrected significant and material audit exceptions in the required annual audit of the contracts or self-governance funding agreements made by the Indian tribe with any Federal agency under the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.) during the 3-fiscal year period referred in clause (i) shall be conclusive evidence of the financial stability and financial management capability of the Indian tribe for purposes of clause (i). (G) *Assumption of functions and duties.—* — An Indian tribal government receiving funding under subparagraph (A) for a program or project shall assume all functions and duties that the Secretary of the Interior would have performed with respect to a program or project under this chapter, other than those functions and duties that inherently cannot be legally transferred under the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.). (H) *Powers.—* — An Indian tribal government receiving funding under subparagraph (A) for a program or project shall have all powers that the Secretary of the Interior would have exercised in administering the funds transferred to the Indian tribal government for such program or project under this section if the funds had not been transferred, except to the extent that such powers are powers that inherently cannot be legally transferred under the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.). (I) *Dispute resolution.—* — In the event of a disagreement between the Secretary or the Secretary of the Interior and an Indian tribe over whether a particular function, duty, or power may be lawfully transferred to the Indian tribe under the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.), the Indian tribe shall have the right to pursue all alternative dispute resolution and appeal procedures authorized by that Act, including regulations issued to carry out the Act. (J) *Termination of contract or agreement.—* — On the date of the termination of a contract or agreement under this section by an Indian tribal government, the Secretary shall transfer all funds that would have been allocated to the Indian tribal government under the contract or agreement to the Secretary of the Interior to provide continued transportation services in accordance with applicable law. **(c) Planning.—** (1) **In general.—** — For each fiscal year, not more than 2 percent of the funds made available for the tribal transportation program shall be allocated among Indian tribal governments that apply for transportation planning pursuant to the Indian Self-Determination and Education Assistance Act ([25 U.S.C. 5301](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5301&num=0&edition=prelim) et seq.). (2) **Requirement.—** — An Indian tribal government, in cooperation with the Secretary of the Interior and, as appropriate, with a State, local government, or metropolitan planning organization, shall carry out a transportation planning process in accordance with section 201(c). (3) **Selection and approval of projects.—** — A project funded under this section shall be— (A) selected by the Indian tribal government from the transportation improvement program; and (B) subject to the approval of the Secretary of the Interior and the Secretary. **(d) Tribal Transportation Facility Bridges.—** (1) **Nationwide priority program.—** — The Secretary shall maintain a nationwide priority program for improving bridges eligible for the tribal transportation program classified as in poor condition, having low load capacity, or needing geometric improvements. (2) **Use of funds.—** — Funds made available to carry out this subsection shall be used— (A) to carry out any planning, design, engineering, preconstruction, construction, and inspection of new or replacement tribal transportation facility bridges; (B) to replace, rehabilitate, seismically retrofit, paint, apply calcium magnesium acetate, sodium acetate/formate, or other environmentally acceptable, minimally corrosive anti-icing and deicing composition; or (C) to implement any countermeasure for tribal transportation facility bridges classified as in poor condition, having a low load capacity, or needing geometric improvements, including multiple-pipe culverts. (3) **Eligible bridges.—** — To be eligible to receive funding under this subsection, a bridge described in paragraph (1) shall— (A) have an opening of not less than 20 feet; (B) be classified as a tribal transportation facility; and (C) be classified as in poor condition, having a low load capacity, or needing geometric improvements. (4) **Approval requirement.—** — The Secretary may make funds available under this subsection for preliminary engineering, construction, and construction engineering activities after approval of required documentation and verification of eligibility in accordance with this title. **(e) Safety.—** (1) **Funding.—** — Before making any distribution under subsection (b), the Secretary shall set aside not more than 4 percent of the funds made available under the tribal transportation program for each fiscal year to be allocated based on an identification and analysis of highway safety issues and opportunities on tribal land, as determined by the Secretary, on application of the Indian tribal governments for eligible projects described in section 148(a)(4). (2) **Project selection.—** — An Indian tribal government, in cooperation with the Secretary of the Interior and, as appropriate, with a State, local government, or metropolitan planning organization, shall select projects from the transportation improvement program, subject to the approval of the Secretary and the Secretary of the Interior. **(f) Federal-aid Eligible Projects.—** Before approving as a project on a tribal transportation facility any project eligible for funds apportioned under section 104 in a State, the Secretary shall, for projects on tribal transportation facilities, determine that the obligation of funds for the project is supplementary to and not in lieu of the obligation of a fair and equitable share of funds apportioned to the State under section 104.